Section 216.26 - Final Determination of Applicability(a) After expiration of the time period specified in § 216.25(a)(4) of this title (relating to Notice of Initial Determination), the executive director shall determine whether a city still meets the criteria set forth in § 216.22(a) of this title (relating to Applicability) based on water quality assessments and studies set out in § 216.24 of this title (relating to Water Quality Assessments and Studies) performed subsequent to the initial determination, taking into consideration any measures taken and improvements that have resulted or that will result from allowing full implementation of the city's efforts to correct the problem.(b) If the executive director determines that a city continues to meet the criteria set forth in § 216.22(a) of this title, the executive director at a regularly scheduled meeting held by the commission shall recommend that the city be required to submit a Water Pollution Control and Abatement Program or, when appropriate, amend an existing Water Pollution Control and Abatement Program.(c) Consideration at a regularly scheduled meeting of the commission shall not be required if the executive director and the city agree that the city will develop and implement a Water Pollution Control and Abatement Program, or amend an existing Program. In lieu of a public meeting, the city, based on an agreement with the executive director, may request that the commission issue an agreed order to submit a Program as described in § 216.27 of this title (relating to Water Pollution Control and Abatement Programs) or an amendment to an existing Program as described in § 216.29 of this title (relating to Amendment Procedures for Water Pollution Control and Abatement Programs).(d) The burden of demonstrating that the city meets the criteria set forth in § 216.22(a) of this title shall rest on the executive director.(e) The executive director shall cause notice of the regularly scheduled meeting to be published in the Texas Register informing the public of the meeting and that the public has 30 days prior to the regularly scheduled commission meeting to provide written comment to the commission on whether the city should be required to develop and implement a Water Pollution Control and Abatement Program or amend an existing Water Pollution Control and Abatement Program.(f) In considering the matter at the regularly scheduled meeting, the commission may: (1) upon its own motion or upon the request of a party, conduct a contested case proceeding and consider evidence and hear oral argument of the parties, or refer the matter to SOAH for a contested case hearing conducted pursuant to the Administrative Procedure Act (APA) to determine whether the city continues to meet the criteria set forth in § 216.22(a) of this title;(2) determine that the city is not required to submit a Water Pollution Control and Abatement Program;(3) determine that the city continues to meet the criteria set forth in § 216.22(a) of this title and approve the executive director's recommendation that the city be required to develop, or where appropriate amend, and implement a Water Pollution Control and Abatement Program; or(4) issue any other order the commission deems appropriate.(g) Should the commission determine under subsection (f)(3) of this section that a Water Pollution Control and Abatement Program is required, the commission order shall specify the pollutants and non-permitted sources of concern and the deadline for the submission of a Water Pollution Control and Abatement Program.(h) The regularly scheduled meeting held by the commission pursuant to this section shall satisfy the requirement of the public hearing mandated by Texas Water Code, § 26.177.(i) A commission order issued pursuant to subsection (f) of this section is a final and appealable order under Texas Water Code, § 5.351. As a prerequisite to appeal, a motion for rehearing under §80.271 of this title (relating to Motion for Rehearing) must be filed within 20 days after the date the city or the city's attorney of record is notified of the commission's final decision or order under this subchapter.30 Tex. Admin. Code § 216.26
The provisions of this §216.26 adopted to be effective March 9, 1999, 24 TexReg 1622